Originally Posted by Marcusm
I may be taking too literal a construction of the para I quoted and of the ruling itself but the case itself did not consider the point at issue as she had never lived in the other country (ie Ireland) but I think it's open to question even if McCarthu had lived in Ireland as to whether that would have been an exercise of treaty rights or citizenship rights. The court might determine this to be a national issue rather than a community one even if the person has lived in both states of which she is a citizen.
Maybe I am reading a different case to you
14 Mrs McCarthy, a national of the United Kingdom, is also an Irish national. She was born and has always lived in the United Kingdom, and has never argued that she is or has been a worker, self-employed person or self-sufficient person. She is in receipt of State benefits.
15 On 15 November 2002, Mrs McCarthy married a Jamaican national who lacks leave to remain in the United Kingdom under the Immigration Rules of that Member State.
16 Following her marriage, Mrs McCarthy applied for an Irish passport for the first time and obtained it.
17 On 23 July 2004, Mrs McCarthy and her husband applied to the Secretary of State for a residence permit and residence document under European Union law as, respectively, a Union citizen and the spouse of a Union citizen. The Secretary of State refused their applications on the ground that Mrs McCarthy was not ‘a qualified person’ (essentially, a worker, self-employed person or self-sufficient person) and, accordingly, that Mr McCarthy was not the spouse of ‘a qualified person’.
21 In that context, the Supreme Court of the United Kingdom decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘1. Is a person of dual Irish and United Kingdom nationality who has resided in the United Kingdom for her entire life a “beneficiary” within the meaning of Article 3 of Directive 2004/38 …?
2. Has such a person “resided legally” within the host Member State for the purpose of Article 16 of [that] directive in circumstances where she was unable to satisfy the requirements of Article 7 of [that directive]?’
39. Hence, in circumstances such as those of the main proceedings, in so far as the Union citizen concerned has never exercised his right of free movement and has always resided in a Member State of which he is a national, that citizen is not covered by the concept of ‘beneficiary’ for the purposes of Article 3(1) of Directive 2004/38, so that that directive is not applicable to him.
She was a UK national, she married a non EU national, she applied for her Irish passport, she then to allow her husband to stay applied for treaty rights The ECJ said she was not exercising treaty rights and so National Rules apply. The case may have been decided differently if she had lived most or a good portion of her life in Ireland as she may then have been held to be exercising treaty rights again I say may as that was not the question asked. If she had also say went to Germany and then returned to the UK she would have a right to EU treaty rights in UK.